Bloggings On Nurse And Allied Health Immigration

The USCIS has just released a comprehensive Memo aimed specifically at H-1B users who place employees at third-party job sites, such as many IT and healthcare staffing companies. The nineteen page Memo, which is available at the link below, clarifies whether an H-1B Petition will be approved or denied in instances where an employee is expected to work at a third-party worksite.

The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary’s work. The Memo lists eleven factors that will be considered.The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):

In 2006, eleven Philippine nurses employed at a Suffolk County, Long Island nursing home walked off their positions because of alleged bad working conditions. This mass resignation set off a chain of lawsuits that appeared to end in January 2009. A January 8, 2010 Associated Press report says that the nurses have now filed a federal civil rights lawsuit against their nursing home employer and the Suffolk County District Attorney’s office.

Shortly after the walkout, the Suffolk County District Attorney indicted the nurses alleging that the mass resignation endangered some of the patients at the Avalon Gardens Rehabilitation and Health Care Center. A New York State appellate court eventually ruled that the resignations were lawful and ordered Suffolk County to stop prosecution. The appellate court also ruled that Suffolk County could not indict the nurses’ attorney who had advised the nurses to quit.

Emboldened by their wins in the US court system, the nurses fought back and filed complaints against their Philippine recruiter, Sentosacare. This time, the nurses lost their cases, which had been filed with the Philippine Overseas Employment Agency (POEA) and the National Labor Relations Commission (NLRC). Hearings were heard in the Philippine congress.

After losing in the Philippines, the nurses took their action to America and sued Sentosacare. In early 2008, that case too was dismissed. That dismissal cited a lack of evidence.

A nursing home attorney and the Suffolk County District Attorney didn't immediately comment about the most recent federal civil rights lawsuit.

The January 2010 Visa Bulletin (released in mid-December 2009) contained information that explained the methodology behind the DOS’ VB. Going further, the DOS predicted expected progression of VB dates throughout Fiscal Year 2010. That process appears to be starting with the just-released February 2010 VB. Fiscal Year 2010 runs from October 1, 2009 through September 30, 2010.

The EB2 category had a slight movement in China, none in India. This is consistent with the January 2010 VB. The EB3 category had 6 week improvement in all categories, except India and Mexico. These progressions are less than one might have expected, but not so much so that there should be any cause for doubting the earlier DOS projections.

The January VB projections for EOY FY-2010 cut-off dates were:

EB2:China: July - October 2005India: February - early March 2005

EB3:Worldwide: April - August 2005China: June - September 2003India: January - February 2002Mexico: January - June 2004Philippines: April - August 2005

Leading the pack is Registered Nursing. The US economy expects to demand over a half million RNs (22%) in the next ten years, at an average salary over $60,000 per year. Immigration traditionally has been used to fill obvious US supply shortages. Americans opinions on immigration differ, but after looking at the objective employment numbers, liberalized immigration for healthcare workers ought to be something everyone can agree on.